- Court: Oregon Court of Appeals
- Area(s) of Law: Land Use
- Date Filed: 04-02-2014
- Case #: A144951
- Judge(s)/Court Below: Nakamoto, J. for the Court; Wollheim, P.J.; and Schuman, S.J.
- Full Text Opinion
Bradley appealed the circuit court's determination that road access to his landlocked property was not unreasonably denied and an award of attorney fees against him. Bradley owns a piece of landlocked property located near the coast. The Oregon Department of Forestry (ODF) owned the land surrounding Bradley's property. Bradley petitioned Clatsop County for a way of necessity in order to get road access to his property. Jurisdiction was transferred to Circuit Court where Bradley's request was denied out of fear that a road would disturb bird nesting habitats. Under ORS 376.185, the state "shall not unreasonably withhold" the required consent for a way of necessity. The circuit court held that consent was not unreasonably withheld, and awarded ODF attorney fees and costs against Bradley. On appeal, Bradley argued for an objective standard to assess whether consent was unreasonably withheld. The Court considered the legislative history behind ORS 376.185(1), and determined that consent consent must not be arbitrarily and capriciously withheld. Here, ODF introduced evidence of the negative impact that a public access road would have on nesting habitat. Therefore, Bradley's petition for a way of necessity was not denied arbitrarily or capriciously. Furthermore, attorney fees and costs were properly awarded. Affirmed.